Thursday, Dec 09 2010
• 10 a.m. (ET)

WikiLeaks: New Disclosures and Legal Issues of Its Founder

Despite a series of severe blows, Wikileaks is going strong and continuing to release classified documents. Over the last few days, Julian Assange, the site’s founder, was denied bail in London; Wikileaks’ primary address was deactivated; it was dumped by its server; and various affiliated companies cut ties with the organization. The U.S. Justice Department is currently looking into what charges it can bring against Assange. In response, supporters have gone on the offensive retaliating against those they deemed hostile to Wikileaks and hundreds of “mirror” sites appeared on the web. Diane gets an update on the new disclosures from Wikileaks and how the site keeps going and growing.

Guests

Declan McCullagh
chief political correspondent for CNET, which is part of CBS Corporation.

Stephen Vladeck
professor at American University Washington College of Law, who specializes in national security law and constitutional law.

John Burns
chief foreign correspondent of "The New York Times"

Tom Gjelten
correspondent, NPR, and author of "Bacardi and the Long Fight for Cuba: The Biography of a Cause."

Transcript

10:06:54

MS. DIANE REHMThanks for joining us. I'm Diane Rehm. After months of posting hundreds of thousands of classified documents on the Internet, WikiLeaks founder Julian Assange is sitting in a London prison after being denied bail. He faces extradition to Sweden over sexual assault charges even as the U.S. is looking at whether he can be charged here under the Espionage Act. This could have implications throughout the news organizations. In the meantime, WikiLeaks supporters have gone on the offensive. Joining us to talk about the latest on this story here in the studio, Tom Gjelten of NPR and Stephen Vladeck of American University School of Law. Do join us, 800-433-8850. Send us your e-mail to drshow@wamu.org. Join us on Facebook. Send us a tweet. Good morning, Tom Gjelten.

10:08:12

MR. TOM GJELTENGood morning, Diane.

10:08:14

REHMAnd good morning to you, Stephen.

10:08:16

MR. STEPHEN VLADECKGood morning, Diane.

10:08:17

REHMTom Gjelten, where do things stand with Julian Assange today?

10:08:23

GJELTENWell, Julian Assange is in prison and behind bars in London, as you say. He was denied bail, so we presume he will stay there until Dec. 14, which I think is his scheduled court appearance. The issue now, he's not, of course, been charged in Britain. He's been -- he's facing allegations in Sweden, and he -- the Swedish authorities want to talk to him about those allegations, want to question him. So now the question is how and whether he would be transferred to Sweden to face those charges or allegations. And, secondly, whether -- in the midst of that decision, whether the United States might intervene with the British authorities and try and get him transferred to the United States to face possible charges here, as you suggest.

10:09:16

REHMAnd, Stephen Vladeck, as the U.S. is looking at prosecuting, what could or would they charge him with?

10:09:26

VLADECKWell, I think, Diane, the candidate we've heard the most about is the Espionage Act, you know, this 93-year-old statute that sweeps very broadly. I mean, I think one of the real questions lurking over this case is just, how broadly? The Espionage Act isn't the only possibility. There are some other federal statutes that, for example, deal with conversion of government property, theft of diplomatic communications and so forth. The problem in Assange's case is that he's not the thief, right? He is the middle man. He is the person who took the cables that were disclosed by Bradley Manning and then disseminated them to the public. So it's a bit of a stretch for the government. They've never actually brought a case like this before, if they decide to bring one against Assange.

10:10:07

REHMDo we have any idea how Bradley Manning got this material, Tom?

10:10:16

GJELTENWhat we know, Diane, is that after 9/11 there were a number of changes that took place within the intelligence community that involved sharing intelligence much more broadly in two directions. First, across agencies, across departments so that intelligence data, cables, reports, et cetera that were, say, the property of the military or the CIA or the State Department were shared across agencies. Secondly, a lot of those reports were pushed forward down to soldiers essentially or low-level people working on the frontlines with the -- in the belief that the insights from that intelligence would make them a more effective fighting force.

10:10:55

GJELTENSo you had intelligence shared much more broadly in two directions to the extent -- you know, we've heard that two -- up to two million people had access to the material that has been leaked. And given that, it should not be surprising that someone, even a private 1st class, like Bradley Manning -- if in fact he is the source of this material -- it should not be surprising that he did have access to it.

10:11:18

REHMSo is he under arrest right now as well, Stephen?

10:11:24

VLADECKI mean, he is, I think -- you know, my understanding of where his case stands is that there are concerns about his mental state and that, I think, he's in -- you know, the question is whether he's actually, you know, a danger to himself right now, whether he's going to be competent for further proceedings. You know, I think he's in a whole lot of trouble both psychologically and legally. And so, I think, that's why it's not necessarily clear where things are going to go with him.

10:11:48

GJELTENYou know, Diane, there's just no question that he is -- he does face serious charges. I mean, he -- as Stephen said earlier, if there's a thief here, if there was a crime committed -- and I think it's pretty obvious that there was a crime committed -- it would definitely be -- he would be the one that would really face the serious charges.

10:12:06

REHMAnd yet it's the U.S. Department of Justice thinking about bringing a case against Julian Assange. If they did, what would the implications of that be, Stephen?

10:12:20

VLADECKI think the implications would be enormous, and I think that's part of why everyone is paying so much attention. The -- in the 93-year history of the Espionage Act, the government has brought exactly one prosecution of someone other than the immediate thief or spy or leaker, and that was five years ago in the APAC case. And that prosecution fell apart. The government has never prosecuted someone under the Espionage Act for publishing classified information. And so I think the real question becomes, if the government can prosecute someone like Assange for distributing this information publicly, what separates Assange from The New York Times or from other media organizations...

10:12:57

REHMOr NPR.

10:12:58

VLADECK...or anyone else who has publicly redistributed these cables or a private citizen at home who downloads a cable onto their computer? I mean, the Espionage Act is so broadly worded that it could conceivably apply in any of those cases. And that's why I think the implications are so profound.

10:13:14

10:13:26

GJELTENThat's a hard question for me to answer, Diane, because the law in Sweden is very different from the law in the United States, and activity that might not be prosecutable in the United States apparently is in Sweden. The laws are written much more broadly, and women have a lot more leeway in pressing charges for sexual assault in Sweden than they do in the United States. You know, as I understand it, he's been accused in two cases of being involved in sexual activity that started out as consensual, but then ended up being non-consensual. And I think that is a pretty serious charge in Sweden. Now, would, in a...

10:14:12

REHMPretty tough line to prove, too.

10:14:14

GJELTENIt's a tough line to prove. And, you know, it also raises the question of whether if Julian Assange were anyone else, you know, would the Swedish authorities be going to this much trouble to get their hands on him? I think that's a legitimate question.

10:14:26

REHMStephen.

10:14:27

VLADECKI think Tom has it exactly right. And I think the real question is something we cannot know, which is whether there has been pressure brought to bear by the U.S. government, by other governments, on the Swedish authorities to bring this case, to pursue it, to see how far it goes. The Swedish prosecutor said, I think, yesterday, that she had not been in contact with any U.S. government officials. But I thought it was curious that she said, I have not been in contact with any government officials. You know, it leaves open the very distinct possibility that there are senior level communications taking place about this case.

10:14:59

VLADECKI think the real point here though is that the prosecution in Sweden is very politically useful to the Obama administration because it buys them time, right? Assange, as Tom said at the top, is in jail. He's in custody. He's not going anywhere anytime soon, except, perhaps, to Sweden. And so, you know, if the administration -- if the U.S. government wants to pursue charges, the goings-on in Sweden give them a little bit more breathing room and a little bit more time to sort of get their ducks in a row.

10:15:27

REHMStephen Vladeck, he's an American University professor of law, who specializes in national security law and constitutional law, and, of course, Tom Gjelten is correspondent for NPR. Do join us, 800-433-8850. Let's back up a little bit and talk about how serious the information is that has been released by WikiLeaks, Tom.

10:16:00

GJELTENYou know, Diane, I think the most serious information leak probably were the cables from Afghanistan and Iraq where sources were actually identified. Sources of intelligence were identified by name. That is a very serious development, one that intelligence professionals worry a lot about and take very seriously. I think the -- this latest dump of diplomatic cables is far more -- it's embarrassing. It's not really damaging in the same sense that the intelligence reports were damaging.

10:16:34

GJELTENThis raises questions about, you know, whether foreign officials and U.S. diplomats will feel free to speak privately and candidly about the issues that they face. Or do they always have to stop and think, you know, is what I say now going to become public, in which case they'll be far more guarded. That could arguably really damage the sort of the process of diplomacy, which is pretty important to peace and stability in the world.

10:17:03

REHMStephen.

10:17:04

VLADECKI think that's right. The other thing I would say is, from a legal perspective, I think the critical point is it doesn't matter how many of the documents are harmful to national security as long as some of them are. And so, you know, even if we can look at many of these cables and say, well, I have no idea why this was classified, and I have no idea why this is something that the government wants to keep a secret. As long as there's a handful -- really, as long as there's one, where the average citizen -- say, the perspective juror, would say, oh, well, wait a second, it's pretty clear how this information, if disclosed, could harm national security. That's the point at which we start getting into the Espionage Act, and, I think, that's why the government might be on stronger footing than a lot of people might think.

10:17:45

REHMIs Julian Assange a journalist?

10:17:51

GJELTENYou know, I would say, no. I mean, to me -- maybe I'm really old-fashioned, Diane, but I think of a journalist as someone who actually writes, you know, who actually has thoughts of his or her own. I mean, he has written op-eds, but basically he is a publisher rather than a chronicler, rather than a journalist. And I -- you know, as I say, maybe that's an old-fashioned distinction, but it's one that I would draw.

10:18:17

REHMWhat do you think, Stephen?

10:18:18

VLADECKWell, as the non-journalist in the room, you know, I think the answer is probably no. But I'm not sure it matters. You know, the -- at least legally, the U.S. courts, the Supreme Court, have always been careful to avoid drawing a line between journalists and public citizens, exactly because of how hard -- of how difficult it is to do so.

10:18:37

REHMStephen Vladeck, American University professor of law. Short break and we'll be right back.

10:20:02

REHMAnd we're talking about a story that's been on the front pages all week long that -- regarding the material published by WikiLeaks. Its founder, Julian Assange, is in a British prison as we speak -- not a very comfortable place, more than 100 years old -- and he has been denied bail. He comes up for bail again on the 16th of December. The judge, thus far, has been less than sympathetic about granting that bail. Here in the studio, Steven Vladeck, he's an American University professor of law, and Tom Gjelten, he is correspondent for NPR. Joining us now by phone from his home in San Francisco is Declan McCullagh of CNET. And CNET, which is part of the CBS Corporation -- he is a political correspondent. Good morning to you. Thanks for joining us.

10:21:19

MR. DECLAN MCCULLAGHHi. Good morning.

10:21:20

REHMDeclan, talk about WikiLeaks and its efforts to protect itself from possible censorship.

10:21:32

MCCULLAGHSure. What WikiLeaks has done since last Friday -- when WikiLeaks.org came under attack -- is it's bolstered its electronic defenses in an attempt to become more difficult to censor. One of these things -- one of these techniques has been very obvious. It's the creation of mirror sites. And the last I checked, there's over 1,000 of them -- I think over 1,300 of them, in fact -- and those are appearing at the rate of about one every 10 minutes. Most of them are overseas in Europe. Some of them are in the U.S. And the idea is that if one WikiLeaks site -- the main WikiLeaks site is taken offline by legal or extralegal efforts, then the other ones will continue to exist.

10:22:21

MCCULLAGHThe other mechanism that's used is a little less visible, and that's behind the scenes. Instead of using U.S.-based companies to -- there's one in Reno, Nev. It used a portion of its infrastructure to move that outside of the United States to Toronto. Instead of using only one company to direct traffic to its primary website, it now uses 14. And this is to provide redundancy in the case of attack, and all that has happened since last Friday or so.

10:22:52

REHMAnd, of course, you've also had a number of companies distancing themselves from WikiLeaks. And you've got companies like PayPal and Amazon.com and Visa, as well as MasterCard. Now, what does that mean, potentially, for WikiLeaks?

10:23:18

MCCULLAGHIt doesn't actually mean that much in the short run because what's happening is U.S.-based companies, or companies with substantial U.S. operations, are distancing themselves from WikiLeaks. But my reading of the situation is this was actually planned. There are plenty of Web hosting providers in Europe that are as good as the ones in the U.S., to a rough approximation. But WikiLeaks chose to use Amazon.com. They chose to use domain name providers that were based in the U.S.

10:23:50

MCCULLAGHAnd I think that was actually just to make a point that they knew this would be inevitably attacked. This is what Sen. Lieberman's staff spent a good portion of last week doing. And then it would make the U.S. look a little silly for applying so much pressure on U.S. companies when, in fact, the information is still available at over 1,000 websites. In the long run, though, if the U.S. is able to cut off the flow of funds, that's a more significant threat. If you're in Europe, you can still use bank transfers.

10:24:22

MCCULLAGHIf you're in the U.S., you can still send checks via the post to WikiLeaks. But you have the heads of some committees -- Peter King, incoming chair of the House Homeland Security Committee, and his counterparts in the Senate -- saying, let's declare WikiLeaks -- (word?) State Department declare WikiLeaks to be a terrorist organization on the same list as al-Qaida. So then it would be illegal to provide them with material support, and, also, banks would be prohibited from processing payments.

10:24:55

REHMBut now, Steven Vladeck, if you declared WikiLeaks a terrorist organization, what are the implications?

10:25:02

PROF. STEVEN VLADECKAgain, I think the implications would be profound. I mean, the terrorist organization list, which has been around for about 15 or 16 years, is controlled by the State Department. And it has, at least right now, the kinds of groups that we would expect to find on it -- you know, al-Qaida, terrorist groups in the Middle East, terrorist groups in Southeast Asia. I think you'd see a very pronounced and sustained legal battle over whether the State Department can really put on this list an entity, an organization, that is simply an information broker, and I think that's where you'd see some very serious First Amendment arguments made on behalf of WikiLeaks.

10:25:37

REHMTom Gjelten.

10:25:38

GJELTENWell, it would really require a redefinition of the concept of terrorism, which we have always associated with violence. No one is alleging that WikiLeaks advocates -- much less coordinates or directs -- any kind of campaign of violence. It's -- what they do is they release -- publish information that can be -- that, arguably, is injurious to U.S. interests. But is that terrorism? To call WikiLeaks a terrorist organization would really change our whole idea of what terrorism means.

10:26:10

REHMDeclan McCullagh, we talked about other organizations like Amazon. What about Twitter and Facebook? Where do they stand on the WikiLeaks case?

10:26:25

MCCULLAGHSure. There's a shadowy group named Anonymous. It's a collection of online activists -- hackers-turned-activists, for the most part -- who have been coordinating attacks for the last few years against companies or entities they just don't like very much. And what happened in the last few days is that Anonymous has taken up the cause of WikiLeaks and has taken efforts to try to knock offline the websites for MasterCard. It was yesterday morning, MasterCard. Yesterday afternoon, it was Visa.

10:27:04

MCCULLAGHAnd this is done via what's called distributed denial of service attack. It's kind of -- imagine Eddie Bauer or Land's End or a company with an 800 number that has 20 incoming phone lines. Well, if 20 people keep calling and hanging up and calling and hanging up, you can probably deny the use of this 800 number to the rest of the world. And so that's what Anonymous is trying to do here. They're coordinating via Twitter. They had over 22,000 followers on Twitter. Yesterday, Twitter yanked the account. They're back with another account.

10:27:37

MCCULLAGHThere was a Facebook page that was -- that Facebook deleted. And so there's -- it's interesting that Facebook wouldn't delete WikiLeaks or a WikiLeaks fan page, but they did delete the Anonymous sort of coordination page. And so this is kind of an information-based war. That might be overstating the case. It's information-based activism trying to knock these websites offline, at least temporarily, which is, by the way, illegal. And I should point out that Visa said to us yesterday that it didn't affect the actual payment processing. It was just the front end of the website, visa.com.

10:28:14

REHMThat's where the question of terrorism could come in. Steven?

10:28:21

MR. STEVEN VLADECKWell, again, I think it's dangerous to throw the word terrorism around lightly in this day and age. I mean, I think Declan is exactly right that there comes a point where these kinds of coordinated attacks on companies do cross legal limits and do cross the line. You know, again, I'd be very reluctant to use the word terrorism. They're crimes -- and it's important that we realize that they're crimes -- but not all crimes are terrorism.

10:28:44

GJELTENYou know, there's an interesting new development here, Diane, which is that the -- a distributed denial of service attack that Declan is talking about requires a large number of computers to be used, you know, in this attack. Now, what we've seen in the past are that criminal groups or hacking groups basically hijack people's computers without their knowledge and use them for an attack. What is new in this case is that Anonymous has made it possible for people who want to support WikiLeaks to basically lend their computers voluntarily to this effort.

10:29:19

GJELTENYou're able to -- you don't even have to be a hacker. You can just download some very simple software, click okay, and Anonymous will take care of the rest. They will use your computer in this attack. So it is a voluntary effort, and that is something that we have not seen before. It really gives -- you know, we think of anti-globalization activists who throw rocks through McDonald's and so forth. This is a new form of protest that we have not seen before that is very effective and, potentially, quite destructive.

10:29:50

REHMStephen.

10:29:51

VLADECKWell -- and I think, you know, it's important to remember that the real question here is, can you actually put the cork back in the bottle? You know, once all this...

10:29:58

REHMRight.

10:29:58

VLADECK...information is out in the public domain, can governments, can private companies, can whoever is trying to do so actually take the information offline? And, I think, we're now learning a lesson that, I think, China has learned quite powerfully over the last 10 years, which is that once information is on the Internet and once it's in the public domain, the cat's out of the bag. And so the question is, you know, shouldn't the remedies be only forward looking and not trying to actually undo what's already been done?

10:30:24

REHMHow would a U.S. Supreme Court look at a case like this, Stephen?

10:30:31

VLADECKWell, the current Supreme Court is no friend of activism like this. And so, I think, you know, there's the question of whether as an ideal matter, you know, you'd see this kind of speech protection be the issue in the Supreme Court. My thinking, my view, is that even this Supreme Court, which has been no friend of this kind of activism, which has not really been a particular fan of the First Amendment, for example, last year in the terrorism material support case, I think would find that there's a line and that the line is either very close toward Julian Assange's or just past it.

10:31:06

VLADECKI mean, there has to be a point beyond which the First Amendment protects the right of everyday people to retransmit information that's already in the public domain. And if the First Amendment doesn't protect that, then I'm not really sure what we're doing here.

10:31:21

REHMDeclan McCullagh, do you want to add to that?

10:31:26

MCCULLAGHIt's interesting to see the Obama administration seem to make the argument. I may be reading too much into this -- but I don't think so -- that WikiLeaks is not a journalist or Julian Assange is not a journalist. And so they're trying to already build this foundation in public for saying if they do pursue criminal charges and seek extradition from, I presume, Sweden or the UK, that the First Amendment doesn't -- as we know it today, doesn't apply. You heard the State Department spokesman say yesterday that he defends the role of journalists in your daily pursuits.

10:32:03

MCCULLAGHThat's a quote. But Mr. Assange is not a journalist, and that the Pentagon has also made that distinction, saying that this is soliciting U.S. government officials to break the law. And that's something that journalists don't do. So I think we're seeing part of that legal case already being built in public statements.

10:32:25

VLADECKExcept that -- I mean, I think that's right. The interesting thing about Declan's point is that these arguments sound lovely to our ears, but this is the exact issue that arose five years ago when The New York Times and The Washington Post broke the NSA warrantless wiretapping program. And there you heard the -- you know, the exact opposite, which is, well, you're publishing and you're disseminating, and so, therefore you're breaking the law.

10:32:47

REHMStephen Vladeck, he is an American University professor of law. And you're listening to "The Diane Rehm Show." Tom Gjelten, how likely is the UK to allow the extradition of Julian Assange?

10:33:09

GJELTENI don't know the answer to that question. I do know that extradition is an issue that governments around the world take very tough positions on. It is not, by any means -- even for such a close U.S. ally as Britain, it's not something that is, by any means, automatic. Now, Assange has not yet been charged. He's not been indicted in the United States. So it's really premature to talk about extradition in any formal sense. And even if he were, the British authorities would have to be convinced that the charges against him are serious enough, that -- considering that he is not a -- either a U.S. citizen or even in the territory of the United States, that it was a reasonable request from the United States.

10:33:56

REHMAnd joining us now from his home in London, John Burns, he is chief foreign correspondent for The New York Times. Good morning to you, John. Thanks for joining us.

10:34:10

MR. JOHN BURNSGood morning.

10:34:11

REHMHow likely do you believe that the UK is to agree to extradite Julian Assange to the United States?

10:34:25

BURNSI think it's not at all clear that that will happen. As you know, that there was a bail hearing on Tuesday at the Westminster Magistrates' Court in the center of London, ironically, almost in the shadow of the headquarters of MI-5 and MI-6 and of the British Parliament, and the district judge who took that hearing, Howard Riddle, spent a great deal of the time asking pretty tough questions of the lawyer representing the Swedish government in this affair, skeptical questions about the nature of the evidence in the case -- in the Swedish case involving sexual improprieties.

10:35:07

BURNSThe odd and ironic thing was that the hearing turned on a technical issue. That's to say the denial of bail came toward the end, of course, when Mr. Assange, defiant, refused to give a street address in the United Kingdom, which would have been a condition of getting bail. He had plenty of people who had turned up -- Jemima Khan, celebrity and activist, Ken Loach, the filmmaker, five or six other people who were prepared to pledge cash surety for him. But that refusal on Assange's part to give his street address -- he actually offered a P.O. Box address in Australia and then a street address in Australia. Having previously refused to give the police -- as those under arrest in this country are required to do -- a DNA swab, fingerprints or have his photograph taken, that persuaded the district judge, Howard Riddle, that he was a flight risk.

10:36:13

BURNSUp to that point, my impression was -- and this goes to your question about the likelihood of his being extradited -- that at the first point of encounter with the British judicial system, Mr. Assange's lawyers were making at least a prima facie case against the Swedish extradition order that was likely to result in protracted hearings here, and possibly to provide the grounds -- even if an extradition order is issued endorsed by the Home Secretary of the United Kingdom -- provide the grounds for an appeal to the European Court on Human Rights in Strasbourg in France. And we know from past experiences, mainly involving terrorist cases, that when that happens, the hearing can be extended -- the process can be extended for months or even years.

10:37:02

REHMSo -- I just want to make clear -- that was extradition to Sweden and not extradition to the United States. Is that correct?

10:37:14

BURNSThat's correct. And there's implications here for what the Obama administration now chooses to do, having said that it is reviewing the possibility of criminal sanctions against Mr. Assange.

10:37:25

REHMJohn Burns, he is chief foreign correspondent for The New York Times. He joins us from Cambridge, England. We'll take a short break. When we come back, it's time to open the phones for your questions, comments. Stay with us.

10:40:03

REHMAnd welcome back as we talk about the case of WikiLeaks, and, right now, Julian Assange sits in a British prison without bail. He'll come up for that bail hearing again on the 16th of December. But if you -- as you've just heard from John Burns, the chief foreign correspondent for The New York Times, when he came before the judge, his lawyer refused to give an address in Britain and was -- in part, because of that -- denied bail. Let's go to St. Louis, Mo. Good morning, Mark. You're on the air.

10:40:49

MARKGood morning. How are you, Diane?

10:40:50

REHMFine, thanks. Go right ahead, sir.

10:40:53

MARKI'm calling about the -- to get your guests' points or maybe their opinions on the broader concerns for our government's response in regards to civil liberties. Right now, the U.S. hasn't charged this man with any crimes. And it's probably -- from what they say, it doesn't sound like that's likely to happen. But despite that, a number of private businesses have been pressured to stop doing business with the man. We've got legislators and high government officials talking about this businessman's treason or his -- not treason. He's not an American citizen.

10:41:29

REHMRight. Right.

10:41:29

MARKBut, I mean, he's -- we're talking about the things that he's done to damage the U.S. I mean, there's no question that the exposure to the way we conduct business overseas is damaging to the U.S. But, I mean, you can say the same thing about the expense of coverage of the legislative process last year during the health care debate. Obviously, that didn't help our government any.

10:41:52

REHMAll right. Thanks for your call. Stephen Vladeck, the question of who is making decisions here in this country as to the outcome of what happens to Julian Assange.

10:42:17

VLADECKWell, I think it's pretty clear that the responsibility rests almost entirely with Atty. Gen. Eric Holder. Both by tradition and by statute, he is the chief law enforcement officer. He would be the official who decides that we want to pursue an indictment in a particular district court. I suspect if it happens, it would be, you know, a district court, perhaps here in the Washington area. And then it would be from there that there would be a formal request for extradition to whichever country Assange is then found in. If it were any time soon, it would be Britain. And I think, you know, that's when the -- things will get interesting, as they say.

10:42:41

REHMJohn Burns, how long can the Brits hold Julian Assange without bail?

10:42:50

BURNSWell, I think they can hold him as long as the district court judge feels that's necessary. We'll have to see. I think, because of the highly political nature of this case, there may be some pressures, some felt pressures to get him out at once from prison, which is altogether a rather unpleasant place to be. As you've mentioned, it's a prison -- that it's a 19th-century prison that holds 1,600 prisoners, many of them convicted of serious criminal offenses. It's not the kind of place that you or I would want to spend even a few hours, much less a week or longer.

10:43:23

BURNSSo I think that when the bail hearing is held again next Tuesday, there's at least a reasonable chance that he will be -- that Assange will be bailed, assuming that he then agrees to meet the conditions that he was not prepared to meet on this past Tuesday. I think the question does arise whether Mr. Assange really wants to be out on bail. He told me when I met him a few weeks ago that sometimes the thought of being in prison seemed rather attractive as a way of getting away from all the pressures that he has been under, and as he said, to have a chance to read a book. And there's also, of course, the martyrdom factor. There's no doubt that Julian Assange sitting in a prison is adding to his iconic status amongst those people who regard him as being the -- if you will, the standard bearer for a millennial mission.

10:44:14

REHMJohn Burns, what's your impression of Julian Assange?

10:44:20

BURNSWell, there's no doubt that Julian Assange is extraordinarily clever, extraordinarily bright and that he has sort of caught a historic moment. This was going to happen sooner or later with the storage of vast amounts of data on computers inadequately protected, as we could see in this case. Sooner or later, somebody was going to found a WikiLeaks, and sooner and later somebody was going to do something like Mr. Assange has done. But it has to be said, and this -- one can say under the authority of many of those who have worked closely with him in WikiLeaks, that he is a complex character as well.

10:44:51

BURNSHe's autocratic. He's capricious. He tolerates no dissent. He is profoundly of the conviction that the United States is a force for evil in the world, that it's destructive of democracy. He wants to lead the world, as he proclaims it, to a brave new world of openness and transparency and honesty, and there will be no information borders. In fact, there'll be no secrecy at all. And in all of this, my sense of him was that he fits a profile that we've seen many times before in people who move history by a minute or a degree or two, one way or the other.

10:45:32

BURNSThey're not ordinary people. He is certainly not an ordinary person. But he may also be his own worst enemy because he is extremely defiant. He is reveling, relishing this battle with the United States. When you go to war with the United States, even if it's only an information war, you're going to have to watch your -- excuse the vernacular -- you're going to have to watch your backside.

10:45:54

REHMJohn, is -- are you convinced that he is totally in control of his faculties?

10:46:07

BURNSOh, yes. I don't think there's much question about that. I mean, I think there's a debate probably to be had about whether people of this extraordinary intelligence and extraordinary degree of self-belief are quite normal like you and I are. But I wouldn't suggest for a minute that Julian Assange is crazed. He is certainly not crazed. Everything he has done has shown an extraordinary intellectual grasp and perception and technical ability. This is a formidable ally -- formidable opponent for the United States, as the others on this panel pointed out. The WikiLeaks -- which doesn't have a lot of people, it has a core group of about 40 people and a few hundred volunteers around the world -- has so far managed to stay ahead...

10:46:56

REHMHmm.

10:46:56

BURNS...of the most powerful nation on earth.

10:46:59

REHMTom Gjelten.

10:47:00

GJELTENWell, I just wanted to point out that this does, in fact, as John is now suggesting, go beyond Julian Assange. I mean, WikiLeaks, as an organization, is continuing, and, theoretically, at least, it could survive even his imprisonment. And this raises the question of, okay, so, Assange is in prison, what do you do about WikiLeaks as an operation? And we have had voices in this country, notably including former House Speaker Newt Gingrich, saying, that the United States should take action to close WikiLeaks down. Now, that is a very different type of operation, a different thought than going after one individual's -- one individual on criminal grounds. This really would require some cyber operation to go after that organization. And that raises a whole...

10:47:45

REHMOther. Sure.

10:47:45

GJELTEN...bunch of other issues that we haven't even talked about, Diane.

10:47:48

REHMSure. Stephen Vladeck.

10:47:48

VLADECKAnd it may backfire. I mean, the irony of all of this is that the more aggressively the United States moves to shut down this operation, the more pushback we're going to see. And, you know, and I think this goes back to the basic point that whether or not Julian Assange is a criminal and whether or not he belongs in jail, you know, you really can't stop information from proliferating, from spreading.

10:48:08

REHMLet's -- let's go to Greensboro, N.C. Good morning, Joe.

10:48:14

JOEYeah, good morning. My question is does this not (word?) of hypocrisy? When we, in our democracy -- we pride ourselves on being the most democratic nation in the whole world. There's freedom of speech, freedom of dissemination of information. Then all of a sudden somebody brings up something that's supposed to be the truth (unintelligible) then all of a sudden, you decide to (word?) and to be prosecuted...

10:48:38

REHMAll right. Declan McCullagh, do you want to comment?

10:48:42

MCCULLAGHIt's a fair point. We have the secretary of state giving a high-profile speech at the end of January. If I recall properly, it was down at the museum, saying the Internet is something that we need to embrace, and we need to protect press freedom online. And Sen. Joseph Lieberman -- probably WikiLeaks' most strident critic, who's also suggested that even The New York Times could be prosecuted -- he's one of the founders of the Global Freedom Caucus in the Senate.

10:49:14

MCCULLAGHSo there are -- I think we are a little vulnerable to charges of hypocrisy there. I mean, if we really believe in free speech, then, well, do we also believe in disclosing classified information online? It's a difficult question for the U.S. to answer because they didn't -- Secretary Clinton didn't put a footnote on -- in her speech saying, well, except for WikiLeaks back in January.

10:49:37

REHMStephen.

10:49:37

VLADECKWell, I mean, I think we say lots of nice things about how much we believe in free speech and how important we think free speech is to develop in countries around the world. The reality is that it's technology that requires us to keep secrets. I mean, if you ask the government, what are the most essentially secrets we keep? You know, building nuclear weapons, right, you know, creating nuclear reactors, things that could be used for a great destructive power against Americans, against anyone around the world.

10:50:02

VLADECKAnd so, I think, the real question is if we accept that there must be some secrets, how do we draw the line, you know? And I think there's a larger, longer conversation to have about how much we overclassify information in this day and age. You know, I resist the notion that there is nothing in our current world that should be kept secret. I think the government has at least some credibility in saying that there's at least a category of information that it can keep from the public.

10:50:25

REHMTom Gjelten.

10:50:26

GJELTENWell, just one line from Hillary Clinton's speech in January. Information networks are helping people discover new facts and making governments more accountable.

10:50:35

REHMHmm.

10:50:36

GJELTENYou have to wonder if she'd like to have those words back in her mouth.

10:50:38

REHMYeah, let's go to Cleveland, Ohio. Good morning, Linda.

10:50:43

LINDAYes, good morning. The emperor has no clothes. The U.S. emperor -- the war on freedom of the press, freedom of speech and freedom of expression is just mind-boggling. The real crime is U.S.-borne policy of belligerence and duplicity and deception, and for them to be putting this coercion on -- at the publisher of these things is just -- I think, is just wrong.

10:51:08

REHMJohn Burns, how do you see it?

10:51:12

BURNSWell, I think that all new technologies throughout history have opened new vistas, new horizons, and eventually, you know, we learn of ways to manage, and in some respects, restrain the technology. I give you the example of the motorcar. The worst number of road -- fatal road accidents in Britain occurred in the 1920s and '30s when it was virtually unregulated. We're going to have to find ways, as some of your contributors have said, to make sure that the states -- the state -- in this case, the United States, is able to protect secrets that it needs to protect in the face of this new technology. And I have no doubt that in time that will happen. And we're at an early stage of the debate. And we don't really know where, along the spectrum of all of this, we're going to end up. And there's a good debate to be had about it.

10:52:10

REHMJohn Burns, he is chief correspondent for The New York Times. He joins us from Cambridge, England. And you're listening to "The Diane Rehm Show." To Ela, N.C. Good morning, Dale.

10:52:28

DALEGood morning. I'd like to take strong issue with the idea that Julian Assange is not a journalist. I expect that publishers across this country were cringing at that notion. You know, back from the beginnings of our country, a publisher/journalist, like Ben Franklin, when there was no distinction between a publisher and journalist. And further, as your panel knows, in 2001, the U.S. Supreme Court said the middlemen, a journalist, couldn't be prosecuted under the -- under privacy law. So there's strong precedent here. And one more notion, we own this information. We, in America, own our information. The government holds it on our behalf, and they can only withhold it under specific exemptions. And for these reasons, I just find it abhorrent that Assange would be prosecuted in the United States under the Espionage Act.

10:53:21

REHMStephen Vladeck.

10:53:23

VLADECKWell, I mean, I agree with Dale that we have a tradition in this country of citizen journalism. And I think that's exactly why, as I said before, we've been very reluctant to draw bright lines legally between journalists and private citizens. The 2001 case Dale is referring to is the case called Bartnicki versus Vopper. And I think it's actually, unfortunately, instructive in the other direction. The Supreme Court there said, you couldn't go after the middleman. It was a radio station for playing an intercepted -- an illegally intercepted phone conversation over the air.

10:53:51

VLADECKBut the court's decision rested on the fact that the radio station legally had the tape. So even though it was illegally recorded, the radio station came into it through legal means. The problem with the Espionage Act is that it is illegal for anyone who is not entitled to possess it, to retain classified information. And so Bartnicki really wouldn't help a journalist in this case.

10:54:14

REHMJohn Burns, we've been talking thus far about how this could play out in the United States. How is it playing out in London and Europe?

10:54:26

BURNSWell, the debate is -- pretty well parallels that in the United States, of course, and Britain and in most European countries, there is nothing quite so broad as the First Amendment to the United States Constitution. So there's some degree of novelty to this. But European newspapers, European broadcast outfits have been absolutely as fascinated with all the material that WikiLeaks has produced on the two wars and now the State Department cables, as have American publications, indeed. As you know, WikiLeaks has so-called media partners, who have been given prior access to these documents before WikiLeaks posted them -- The New York Times amongst them.

10:55:04

BURNSBut the other partners are Der Spiegel in Germany and The Guardian, as well as some other European organizations, so these issues are being vigorously debated. I think that there is a fairly strong popular support for the idea that there's -- a public interest has been served by these disclosures. But there is also a fairly common feeling that there has to be some limits to this, and there's a limit that's recognized by the media partners, by The New York Times.

10:55:33

BURNSI recommend to your readers when they look at the -- read the editor's notes on The New York Times website posted by Bill Keller, the executive editor of The New York Times, who has talked about just exactly how stringent The New York Times has been in deciding which of these cables to post and which not to, how carefully we have been deceived that we only deal with redacted material, and how we acknowledge that there is within this transient material, as there would inevitably be with an undifferentiated disclosure of this kind of material that The New York Times, at least, would choose not to publish.

10:56:08

REHMAnd, John, considering, as you say, divided opinion all over the world, what is your best guess as to how the London court is going to deal with Julian Assange?

10:56:26

BURNSMy guess is that he will get bail. I don't think that he is going to be so defiant and so stubborn as to refuse to give a street address. I think the bail will be posted pretty stiffly by Howard Riddle, the district court judge. And we will then see a very protracted legal process. And we'll have to wait and see whether the United States lays charges, which would then result in another extradition hearing, either here in London, if Assange is still here or in Stockholm had he been extradited there.

10:56:58

REHMAll right. And we'll have to leave it there. John Burns, chief foreign correspondent for The New York Times. Declan McCullagh, chief political correspondent for CNET, part of the CBS Corporation. Stephen Vladeck, American University, professor of law. Tom Gjelten, correspondent for NPR. Thank you all so much.

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